Saturday, August 9, 2008

Grand Prairie irrigation projects continues despite environmental drawbacks

Bird monitoring keeps a legal lid on water project
Posted on Saturday, August 9, 2008

Wildlife groups haven’t proved that the stalled Grand Prairie Irrigation Project will harm the environment if it proceeds, but the government’s method for deciding that it won’t harm the ivory-billed woodpecker needs more explanation, a federal judge said Friday.
The ruling came in a 3-yearold lawsuit aimed at putting a stop to the $ 420 million project, which is designed to pump water out of the White River in north Arkansas to irrigate eastern Arkansas farmland.
The project, authorized by Congress in 1996, has been stalled for several years, most recently because of a ruling handed down two years ago by U. S. District Judge Bill Wilson Jr., who ordered federal agencies to determine if it could interfere with the bird’s habitat.
The woodpecker had been considered extinct for 61 years until it was reported sighted in 2005 in the Cache River National Wildlife Refuge. Its existence hasn’t been proved, but it is considered to exist for purposes of the lawsuit.
The lawsuit filed by the National Wildlife Federation and the Arkansas Wildlife Federation followed the dismissal of an earlier lawsuit by the same groups, on different grounds, and dismissed in 2004 by U. S. District Judge G. Thomas Eisele.
Eisele found that the project wouldn’t adversely affect the White River or its basin. His dismissal of the case was upheld in 2005 by the 8 th U. S. Circuit Court of Appeals in St. Louis, shortly before reports of the bird’s possible existence.
In a written order released Friday, Wilson generally deferred to decisions made by the U. S. Army Corps of Engineers and the U. S. Fish and Wildlife Service on the project’s impact on the environment and the bird’s habitat.
Wilson said the Fish and Wildlife Service had no rational reason for changing previously agreedupon methods of monitoring tree cavities that might provide nesting sites for the bird.
The monitoring was carried out as part of a study on how the irrigation project might affect the woodpecker, whose existence has been challenged by some in the science world.
Wilson ordered the agency to correct deficiencies in the administrative record over why the interval for monitoring tree cavities in the woodpecker habitat was changed.
The ruling did not indicate that the irrigation project would be blocked in the long run.
Defendants in the suit are the Fish and Wildlife Service and the Corps. They argued at a May hearing for the judge to lift an order halting the work while he considered the case.
On Friday, Wilson declined to issue a permanent injunction stopping the project, as the wildlife groups had asked. But he also declined to allow work to resume until the Fish and Wildlife Service modifies the record to explain changes made in monitoring the tree cavities.
The suit stemmed from scientific reports that the ivory-billed woodpecker had been sighted in the swampy lowlands of east Arkansas. But the same scientists have been unable to get a picture of the bird to confirm its existence, despite thousands of hours of searching and monitoring its likely habitat.
The Corps and the Fish and Wildlife Service agreed to evaluate the Grand Prairie project for any possible effect on the bird and its habitat, as required by the federal Endangered Species Act.
A 2006 letter from the wildlife agency to the Corps had said that holes in trees that might provide nesting sites for the bird must be monitored for ivory-billed woodpecker activity for the final two hours of daylight on five consecutive days, according to Wilson’s ruling. But, instead, researchers were allowed to monitor the cavities for a reduced period, on two separate days in separate weeks, Wilson said.
Wilson said the Fish and Wildlife Service did not explain why this change was made except to cite the researchers’ thousands of hours of monitoring experience. The judge said it’s not at all clear what logic was followed in reducing the monitoring time.
“An agency must cogently explain why it has exercised its discretion in a given manner — the [Fish and Wildlife Service ] has not met this burden,” Wilson wrote.
His ruling ordered the wildlife agency to modify the administrative record to explain why the change was made.
Once that explanation is provided, the federal agencies will likely ask Wilson to review it and lift his order halting work on the water project.
No comment could be obtained after business hours Friday from either plaintiffs or defendants in the case. A message left at a home telephone number for a Corps spokesman at West Memphis was not returned. An attempt to page David Carruth, president of the Arkansas Wildlife Federation, using his cell-phone
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